Category Archives: Lawyers use of specialization and expertise ethics

Florida Bar Board of Governors scheduled to review proposed revisions to Bar Rules related to referral services and lawyer “expert” advertising

Hello everyone and welcome to this Ethics Alert which will discuss the scheduled review by the Florida Bar Board of Governors (BOG) of proposed amendments to the Florida Bar Rules related to private lawyer referral services/qualifying providers and lawyer advertising as expert/specialist when the lawyer is not certified at its July 27, 2018 meeting.  According to the Florida Bar:

“The Board Review Committee on Professional Ethics has on their agenda a question regarding how lawyers can be paid by lawyer referral services — or qualifying providers — including considering several arrangements that are currently banned by Bar rules. Here is an overview and a Q&A on the changes that went into effect on April 30. Overview and Q&A

“The committee may report on the requests of three lawyer referral companies on whether they are qualifying providers under revised Bar Rule 4-7.22. 411-Pain and 1-800-Ask-Gary said they primarily want to refer callers who need medical assistance to their affiliated clinics and will send those who request legal assistance to participating lawyers at no cost. LegalRFQ wants to create an online system where potential clients could post their legal problems online and participating lawyers could submit bids for handling those issues.”

“In addition, the agenda includes a discussion on an amendment to Bar Rule 4-7.14, which allows attorneys and law firms that are not certified to advertise they are experts or specialists. Experts and Specialists  This amendment is being presented to the board on first reading. Almost three years ago, a federal judge struck down the Bar’s rule prohibiting non-certified lawyers from saying they or their firms are experts or specialists. The Bar’s first attempt to redraft the rule — which said lawyers and law firms that substantially met certification standards could say they were experts or specialists — was rejected by the Florida Supreme Court. The court said the amendment ‘could lead to differing and inconsistent applications.’ The board has a December 17 deadline to refile the amendment with the court.”

Bottom line: The BOG will be considering proposed revisions to the lawyer referral/qualifying provider rules, including fee arrangements that are currently prohibited by the rules, and also an amendment to the certification rule which would address the federal court opinion which found that this rule was unconstitutional as applied and issued an injunction prohibiting its enforcement, which the Bar did not appeal.

Be careful out there.         

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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The Florida Supreme Court rejects Bar proposed advertising Rule amendment on lawyers’ use of “expert” and “specialist”

Hello and welcome to this Ethics Alert update on the Bar’s proposed amendment to Florida Bar Rule 4-7.14 on lawyers’ of “specialization” and “expertise” in advertisements which was filed in response to the federal court opinion which found the rule unconstitutional.  The Bar filed an Omnibus Rules Petition with, inter alia, the proposed rule amendment with the Florida Supreme Court and the court issued an opinion on November 9, 2017 rejecting the proposed rule revisions.  The SC opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf#search=Bar

The proposed amendment would have prohibited a lawyer from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  If the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”  The court’s opinion states:

We decline to adopt the Bar’s proposal to amend Bar Rule 4-7.14 (Potentially Misleading Advertisements). The Bar proposes amendments to this rule in response to a decision from the United States District Court for the Northern District of Florida, which held, in relevant part, that provisions in Bar Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from making truthful statements that they “specialize in” or “have expertise in” a particular field of practice were unconstitutional.

In response to this decision, the Bar recommended amending the rule in subdivision (a) (Potentially Misleading Advertisements) to add a new subdivision (a)(5), which would prohibit lawyers from using in their advertisements the terms “specialist,” “expert,” or other variations of those terms unless the lawyer meets one of the four criteria established in subdivisions (a)(5)(A)-(a)(5)(D). The criteria in subdivisions (a)(5)(A), (a)(5)(B), and (a)(5)(C) are similar to those in other parts of rule 4-7.14. However, subdivision (a)(5)(D) would provide that a lawyer may identify as a “specialist” or “expert” if the lawyer’s “experience and training demonstrate specialized competence in an area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”; if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement must include a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by the Bar or another certification program.

We are concerned that the Bar’s proposal here does not sufficiently address the district court’s decision, and that the language requiring that a lawyer’s experience be “reasonably comparable” to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications. Because we believe that this important issue requires further study, we decline to adopt the Bar’s proposed amendments to rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.

Bottom line:  I previously said that the proposed Bar rule amendment was problematic and may not comply with the federal district judge’s opinion finding that the rule violates the U.S. Constitution.  The Florida Supreme Court has declined to implement the revised rule and the Bar will now go back to the drawing board.

Stay tuned…and be careful out there.

If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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The Florida Bar will file petition with advertising rule amendment regarding lawyer’s use of “expert” and “specialist” on October 15, 2016

Hello and welcome to this update of the May 25, 2016 Ethics Alert regarding the proposed amendment to Florida Bar Rule 4-7.14 with new subsection 4-1.14(a)(5) related to claims of “specialization” and “expertise” in advertisements.  The BOG approved the rule amendment and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals and the new Rule 4-7.14(a)(5) language is below:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

(a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(5) a statement that a lawyer is a specialist, an expert, or other variations of those terms unless:

(A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization;

(C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization; or

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

The new subsection in Rule 4-7.14(5)(a)(D) states that a lawyer is prohibited from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  In addition, if the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”

According to the Bar’s filing notice: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  As I previously said, it remains to be seen whether the Florida Supreme Court will approve the amendment as drafted and, if it does, whether the restrictions in the amended Bar rule on their face and as applied are in compliance with the federal district judge’s 9/30/15 order finding that the previous rule violated the United States Constitution.  The Order here: 9/30/15 J. Hinkle Order and Injunction.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway N., Suite 150

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Bar Board of Governors approves Florida Bar advertising rule amendment regarding lawyer’s use of “expert” and “specialist”

Hello and welcome to this update of my May 19, 2016 Ethics Alert regarding the Florida Bar Board of Governors’ final review of the proposed amendment to Florida Bar Rule 4-7.14 related to claims of specialization and expertise in advertisements.  The BOG approved the rule amendment as drafted at its meeting on May 20, 2016 in Palm Beach.  The approved amendment is below with the relevant new language in italics:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising. (a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(4) a statement that a lawyer is board certified or other variations of those terms unless:

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

Bottom line:  As I previously said, it remains to be seen whether this rule amendment is in compliance with the federal court’s order and the United States Constitution on its face and as applied.  If the Bar reasonably interprets the language that the lawyer’s experience must be “reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules”, it may be found to be constitutional if challenged.  Another potential constitutional challenge would be that the rule is vague and ambiguous on its face.  The rule amendment must now be reviewed and implemented by the Florida Supreme Court to become effective.  Stay tuned…

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Filed under 2013 Florida comprehensive advertising rule revisions, Attorney Ethics, Florida Lawyer advertising rules, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising specialties and certification, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers use of specialization and expertise ethics